The Citizenship Amendment Bill, passed by the parliament this week, has been notified by the president. It is now an Act.

In an earlier explainer, I answered some key questions about the new law:

• What is the Citizenship Amendment Bill, 2019 all about?
• Are there really “persecuted minorities” that would benefit from this legislation?
• What is Article 14 and does the Citizenship Bill violate our constitution?
• Why does the legislation not cover countries other than Afghanistan, Bangladesh and Pakistan?
• What special benefits will minority refugees from the three countries get under this law?
• What are the main problems with the Bill?

Do read that first if you want answers to any of these questions.

In that piece, I lightly touched upon how the Citizenship Amendment Act, or CAA, is related to the National Register of Citizens exercise carried out in Assam. In this article, I’ll explain why that is particularly problematic.

Why it’s important to get into the details is that the issue is being buried under a lot of rhetoric. While the government and its supporters claim that Muslims in India will not be affected by this law, their opponents argue that it’s the first step in a sinister plan to destroy the secular character, specifically by targeting Muslims. 

The opposition’s worries are legitimate. But we need to figure out exactly how the CAA can potentially affect Indian Muslims.

How many beneficiaries?

During the debate on the Citizenship Bill in the Rajya Sabha on Wednesday, Amit Shah kept saying that “lakhs and crores of people” will benefit from it. It was strange because when a parliamentary standing committee scrutinized this Bill, it was informed by the Intelligence Bureau that only 31,313 people from the six faiths mentioned in the Bill wouldl be the immediate beneficiaries. So, who are these lakhs and crores of people the home minister was talking about?

Shah said, “I request all of you to accept this Bill which has been brought in by the Narendra Modi government so that crores of people see a new day.”

Again, crores of people? This clearly implies that the numbers mentioned in the standing committee’s report are either incorrect or that the government expects these numbers to exponentially increase.

Shah admitted to this while speaking in the Rajya Sabha. Roughly translated from Hindi, he said: “When we make this law and tell immigrants that you will get citizenship from the day you came and we will protect you, then when the citizenship numbers come, I will be in this House and Ghulam Nabi sahab will be here, and the numbers will be in lakhs and crores. That is what I want to tell the House. This is because you have never made provisions to protect them. How would they declare [that they are illegal migrants]? If they did, they would lose their jobs, marriages would end, their homes would be taken away, they would be arrested. Today, because of the Bill that Narendra Modi has brought, they can declare, without any fear, ‘Yes, we are refugees. Give us citizenship.’ We have brought a provision to give them citizenship with retrospective effect.”

Source: Rajya Sabha Verbatim Debates

After reading this, a few questions come to mind. Since 1947, only 31,313 migrants belonging to six minority communities in Afghanistan, Pakistan and Bangladesh have declared to have been persecuted for their faith. So, how is it that after this law is passed, the numbers will go into lakhs and crores? Why is our home minister admitting on record that India will suddenly have crores of new citizens once this law comes into force?

This is where the NRC comes in.

A botched exercise

The National Register of Citizens in Assam was updated over the past few years to identify undocumented migrants who had come mostly from Bangladesh after 1971. The updated NRC was supposed to document all those people whose names were listed in the NRC of 1951 and were still alive as well as their living descendants who could prove they were permanent residents of the state.

It was a botched exercise. There were many errors during the updation process and a lot of people were excluded who clearly didn’t deserve to be. In all, around 19 lakh people in Assam were excluded from the final register. Soon, the BJP started complaining, vocally, that many undocumented immigrants had been included in the register, while around five lakh Bengali Hindus were excluded. In fact, even some people who had campaigned for the BJP found themselves excluded. #Awkward.

There were three options to fix this mess. One, just scrap the whole thing and pretend like it never happened. But that wouldn’t work because the BJP’s whole Northeast India electoral march has “we will throw out illegal immigrants” as a major promise and an exercise like the NRC is the tool to do thay. Two, redo the whole thing and desperately hope that there are no errors the second time. This one is quite impossible because the data entry folks are bound to make errors again, like they did the first time. The excluded people can raise hell for the BJP. Which leaves us with the third option: find a filter. 

A filter which ensures that despite the errors in NRC, only a certain section of society remains excluded from the NRC.

Enter the Citizenship Amendment Act

If you look at the full text of the Citizenship Amendment Act, 2019, you’ll notice a peculiarity: there is no mention of “religious persecution” in the law. But, in the Statement of Objects and Reasons of the Bill, which was presented in the parliament, you will find this:

The main push and logic behind bringing this Bill was to give a safe haven to persecuted Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians from Pakistan, Bangladesh and Afghanistan. Although it’s mentioned in the statement of reasons, where the home minister explains why this piece of legislation is being brought, the term “religious persecution” is not mentioned in the law that was notified. This was pointed out in the parliament by Kapil Sibal and other members. 

To explain how the CAA acts as a religious filter, It’s important to explain the significance of this one little omission. This part gets a wee bit complex with all the legal jargon, so bear with me.

In Section 2 of the CAA, it is written that people belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan who entered India before December 31, 2014 will not be treated as illegal immigrants. It also mentions the exemptions under The Passport Entry into India Act of 1920 and the rules made thereunder.

So, like a Russian doll, there is the CAA, which is referencing the Passport Act. Under the Passport Act, the government is free to make rules. 

via GIPHY

Rules are basically subordinate laws that the central government can issue through a gazette notification at any time. These laws do not require the approval of the parliament. In September 2015, the government notified a set of rules under the Passport Act that include the following:

In these rules, you find the words “religious persecution” and “fear of religious persecution” mentioned. Simply put, these words are not mentioned in the main law but they have been made a part of rules under another law which can be changed atany time through a notification.

In fact, when asked about this in the parliament, Shah mentioned the same rules. He said, “Speaker sir, Kapil Sibal mentioned one or two rules, Entry 2 of Passport Act was one of them. In 2015 and 2016, we made changes to the Passport Act. The notifications for the same have also been issued.”

This was seemingly a response to Sibal’s question about the absence of the term “religious persecution” in the Citizenship Bill.

The Muslim filter can be imposed through these rules. By making sure that the central government holds the power to change the Passport Act rules, to ultimately affect the CAA, that too any time it wishes, they have opened up the possibility of massive future misuse. 

Possibly, misuse to fix the botched NRC exercise.

Future misuse of CAA

Imagine a scenario where a nationwide NRC is rolled out. The babus administering the exercise mess up and end up excluding a whole bunch of people from the register, of all faiths. 

Now, a legal recourse is available only to people of the six religions mentioned in the CAA. Do note that the law specifically says that people belonging to these faiths “shall not be treated as illegal migrants”. Muslims, however, will not have any such recourse. For that matter, even Jews and atheists won’t be able to do anything about their exclusion from the register. 

As a result, lakhs and crores of excluded people might have to declare that they are illegal immigrants to become Indian citizens again.

The tricky part is proving religious  persecution in another country. To benefit from the CAA, the person excluded from the NRC must prove that, one, they are a non-Muslim migrant from Afghanistan, Pakistan or Bangladesh, and, two, that they came to India to escape religious persecution. Because it can make the rules under the Passport Act essentially at whim, the government can simply strike out the second condition and keep only the first.

It doesn’t help when the home minister himself has this to say.

What this Bill is systematically and deliberately doing is to create two classes of citizens based on their faith: people who can be citizens and people who cannot. Given this clear discriminatory nature of the Bill, it is unlikely to stand the test of Article 14 of the constitution. For now, the existence of the law simply tells the world that India can deprive its own Muslims of citizenship while welcoming migrants of other faiths. And also that we don’t give two hoots about atheists or Jews, persecuted or not.